Florida Kayak Accidents, Injuries, Deaths and the Law

The popularity of kayaking, and kayak fishing, has exploded in Florida. I have been a kayak angler for over nine years and have seen the sport grow from a few anglers pocketed in particular geographic locations to a statewide phenomenon. A few years ago, information about ocean kayak rigging and techniques was only available through trial-and-error or a close-nit network of fishermen. Today there are multiple magazines dedicated to kayak fishing and fishing shows often showcase the sport. There even is a national kayak fishing tournament where several hundred anglers participate each year. Though avid kayakers find the sport both challenging and rewarding, it is not without additional risk. The biggest man-made danger comes from the interactions between motor boats and kayaks. This is especially so in Florida where there are more registered motor boats than any other state. These two types of vessel operators must live in harmony in order to avoid accidents, injuries and deaths.

I have been involved with some close calls with motor boats whose operators were either not paying attention to where they were going or ignorant of the navigational rules. The photograph appearing at the top right tells such a story. My friend and kayak angling teammate Robinson Rodriguez (pictured above) and I were fishing off Ft. Lauderdale, Florida when I noticed a commercial sport fishing boat coming straight at me. The captain was on the bridge talking on his cell phone paying attention to what was going on in back of his boat and not where he was going. Amazed at the sheer negligence of a professional charter boat captain, I sounded my air horn. The noise got the captain's attention who immediately altered course. This was good for me but bad for Rob as the fifty plus foot craft was now heading right at him. The fishing boat notices Rob and again altered course missing his kayak by feet. The fishing lines the sportfish was trolling tangled with Rob's line. The sportfish then started dragging Rob for several yards without so much as slowing down until the lines came free. This is just one near collision of many I have experienced and Florida kayakers have several other stories. We were lucky that day and could have been seriously injured or worse if there was a collision.

This article is intended to explain the proper interaction between motor boats and kayaks by discussing some of the more commonly violated navigation rules along with the civil liabilities should a collision occur.

Navigational Rules

Several of the maritime nations in 1972 formed a set of navigational rules designed to minimize collisions. The United States adopted these rules in 1977 and has become a part of our national law. Though there are slight differences between the inland and international navigation rules, this article will only discuss the international rules as they will apply to most meetings between kayaks and motors boats in the ocean and are very similar to the pertinent inland rules.

Keeping a Lookout - Rule 5

All vessels (kayaks and motor boats) must keep a proper lookout in order to make a full appraisal of the situation and of the risk of collision. This is easy for kayakers. By simply keeping the head up a kayaker can observe what is transpiring in the area. In fact, most often I am able to hear motor boats miles before they reach my area. Be vigilant and prepare to act if a motor boat starts to come too close. Motor boaters are required to look for all craft big and small. The operator and guests should share in the responsibility of keeping an eye out for other craft. This will significantly lessen the potential of a collision.

Maintaining Safe Speed - Rule 6

Navigational Rule 6 requires every vessel at all times to proceed at a safe speed so that proper and effective action can be taken to avoid collision as well as stop within a distance appropriate with the prevailing circumstances and conditions. It makes common sense to operate a motor boat at a slower speed in areas where other less maneuverable craft are typically found such as busy inlets, bays and close to the beaches. This is most often is violated by weekend boaters -- though I have witnessed professional captains run yachts at high rates of speed mere yards from swim buoys that line many of Florida's beaches. Violation of this rule in combination with not having a proper lookout often leads to collisions.

Monitoring Radar - Rule 7

Modern radars available to the public have advanced to detect small targets on the water including kayaks. The navigational rules are written in such a way that if a vessel is equipped with operational radar, it must be used. Should a motor boat outfitted with radar collide with a kayak, it is no excuse that the radar was not turned on.

Right of Way - Rule 18

Navigational Rule 18 requires power driven vessels to give way to a non-power driven vessel. Traditionally kayaks have been paddle propelled. Manufacturers have been recently outfitting kayaks with peddle drives. Motor boats bear the same legal responsibility when encountering kayaks no matter if the craft is paddle and peddle propelled. This means when approaching a non-motorized kayak, the power boat must give the kayaker the right of way. It should also be understood a sailboat operating its engines (even when the sails are also up) are considered motor boats in the eyes of the law and must abide by the Navigational Rule 18 as if it is a motor boat.

An important exception to this rule is if the motor boat is operating in a narrow channel or inlet. In such meeting situations, the kayak must give way to the motor boat if the motor boat will likely run aground if required to give way to the kayak.

The rules governing kayaks with motors are different. If the kayak is outfitted with a motor (even an electric motor), it must follow the same rules as motor boats. This means in a meeting situation, the vessel on the starboard tack, whether it is a kayak or motor boat, has the right of way.

No matter if the kayaker is in motorized or non-motorized kayak, if a motor boat is bearing down and does not show signs of altering course, the navigation rules require the stand on vessel (the kayak) to take all necessary means to avoid a collision. This is also simply common sense.

Civil Liability

Maritime law is particularly harsh to violators of safety laws including the aforementioned navigational rules. The Supreme Court as far back as 1873 set forth a rule of law that presumes the vessel operator at fault for a collision if, at the time of collision, the operator violated a statutory rule intended to prevent collisions. Most importantly, this presumption can only be rebutted if the operator shows not only that the violation might not have been one of the causes, or that it probably was not a cause, but that it could not have been a cause of the collision. This heavy burden is often not met.

Damages

Most kayakers stay within Florida territorial waters which are defend by the Florida Constitution as three nautical miles from the Atlantic coastline and nine nautical miles from the Gulf shore. Should a collision occur within Florida territorial waters resulting in personal injuries or death, Florida damages law will apply to the civil lawsuit to the exclusion of Federal maritime damages law.

The application of Florida damages law as opposed to Federal maritime damages law is most important in wrongful death cases. The Federal Death on the High Seas Act (DOHSA) is very limited. Under DOSHA, the estate cannot recover pre-death pain and suffering and only actual dependents can make claims. In short, if the decedent does not have a spouse or dependent children, the value of his or her life is reduced essentially to burial expenses and lost earnings the decedent would probably accrue during his life. Moreover, punitive damages are not available under DOHSA no matter how egregious the conduct of the offending boat operator. Florida wrongful death law provides much more. Florida benefits include lost of the decedent's earnings, funeral expenses but also pre-death pain and suffering. Also certain survivors such as a spouse and minor children are entitled monetary damages for the loss of comfort and guidance they would have received from their deceased loved one. Moreover, given a recent ruling by the Supreme Court, punitive damages may also be available if the motor boat operator acted willfully or recklessly in causing the collision.

Florida personal injury law allows for compensatory damages in the form of payment of medical bills, lost wages as well as pain and suffering for those injured but not killed in a collision occurring within Florida waters. Furthermore, punitive damages may also be available in certain situations.

Conclusion

Kayakers and boaters must be aware of the navigational rules in order to safely share Florida's beautiful waters together. It is ever so important that safety should be in the forefront of everyone's mind who goes on the water. If not, accidents will happen and people will needlessly be injured or killed.

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